I’m conflicted about how outraged I should be at Banks’ actions. Yes, Banks is guilty of deliberately trying to hide from the world the identity of donors to his campaign that (for whatever reason) he thought might prove embarrasing down the track. This is a bad thing for politicians at any level to do. However, Banks’ opponent at the relevant mayoral election was also busy hiding from the world the identity of those who funded his campaign … he just did it more cleverly by utilising a trust as a conduit. So is the real issue here that Banks just didn’t obey the letter rather than the spirit of the law?

Banks broke the law, and that is not something to be minimised. However as Geddis points out the impact of his actions is no different to what Len Brown did. They both hid donations – just that Brown used a trust to avoid disclosure (which was legal) and Banks did not.

Fourth, it is true that Banks only has to leave Parliament if he gets convicted of the offence he is guilty of (conviction and guilt are not the same thing). But I really, really hope he doesn’t get discharged without conviction – New Zealand has a terrible record of pursuing and punishing electoral offences (the police still haven’t actioned a bunch of complaints from the last election campaign!), and so to (effectively) let off an MP for breaching electoral law would reinforce the message that these sorts of rules really don’t matter. Furthermore, the honourable thing for Banks to do would be to resign now … it’s a bad look for Parliament as an institution to have an MP guilty of an offence that should see him thrown out hanging on in the hope that a court will spare him that indignity. By all means Banks should carry on trying to clear his name with appeals and the like, but he won’t be doing the institution any favours if he insists on his right to remain.

If Banks doesn’t resign, but is convicted, we then have the issue of what happens is his seat is vacated. Here’s the time-frame.

31 July – last House sitting day

1 August – sentencing of Banks

3 August – deadline for Registrar to notify the Speaker of conviction

4 August – vacancy declared in Gazette

14 August – Parliament dissolved

20 August – Writ Day for general election

25 August – deadline for Governor-General to issue writ for a by-election

The media have said that if Banks is convicted on 1 August, then Parliament would need to reconvene to decide not to hold the by-election. I’m not sure that would be necessary, even though it would remove doubt.

S129(4) of the Electoral Act says no by-election is needed for a vacancy that occurs after Parliament is dissolved or expires. Now the vacancy would occur before the dissolution, but the writ would not have to be issued until after the writs for the general election has been issued.

I think electoral officials could use discretion to decide that a general election writ for Epsom supercedes a by-election writ for Epsom, and not to hold the by-election eve if Parliament didn’t vote not to have it. The by-election would not be held before the general election and would be of no consequence.

So if Banks does not resign (which seems unlikely), and is convicted on 1 August, it may not be necessary for Parliament to reconvene to vote not to have a by-election. If the Government just delays the writ until after the writ for the general election, I’d say common sense would see prevail. I can’t see a Judge ever ruling that the Electoral Commission must run a by-election after the general election writs have been issue.

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This entry was posted on Sunday, June 8th, 2014 at 12:00 pm and is filed under NZ Politics.
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I think it would be best if Banks resigned soon – but if there is no by-election (and National and Labour may be reluctant to contest one just before Parliament dissolves and just before an election) that will leave Epsom without an MP for three months which may not be fair on them.

An ‘Open Letter’ from Graham McCready to John Banks (sent 7 June 2014):
__________________________________________________________________________________________________

TO John Banks Copy the Rest of New Zealand

Dear John,

I can understand the situation you find yourself in having been in the same situation myself.

From this personal experience I can tell you that you are at serious risk of receiving a jail term of about 18-months.

His Honour has given you the opportunity to qualify for Home Detention.
The term is likely to be about six months.
He is NOT going to consider a discharge without conviction.
That is a delusional fantasy.
If David Jones QC continues to suggest the possibility my advice is to sack him and file a complaint with the Law Society on the basis of gross incompetence.

See my attached missive on the process.
If you get home detention your overseas travel will suffer minimal disruption.
Any jail term of one year or more and the Inter Islander Ferry may be about your limit.

How then do you ensure you stay out of jail?

Accept responsibility for your actions.

Immediately as part of acceptance resign from Parliament.

Do not dance on the head of a pin before the Probation Officer on the difference between “Found Guilty of an Indictable Criminal Offence” and “A Conviction being entered”.

On Monday YOU contact the Probation Service.
Do not let your clown of a lawyer do it or wait for a Probation Officer to phone you.

COOPERATE with them. BE VERY HUMBLE

Tell them you have royally screwed up and that you are unconditionally guilty.

Do a press conference and make an unreserved apology to the People of New Zealand for your conduct.
Back that up by a huge donation to low decile schools.
Do not say which ones or how much.
That will not get you off but it will be spiritually uplifting

Tell them you will not be appealing the verdict.

DO NOT ATTACK OTHER PERSONS INVOLVED IN THE CASE.

Assure the Probation Officer that you will comply with all instructions and conditions of Home Detention no matter how tedious. And they will be tedious.

Treat the Probation Officer with respect.
Do not make racial or serious remarks.
You may find your Probation Officer is a young female Criminology Grad less than half you age.

The Probation Service will need to approve your apartment for Home Detention.
From my experience it is probably not suitable.
The reason is that a Probation Officer or Security Guard cannot walk up to the front door 24-hours a day because of the building security.
Tomorrow rent a VERY MODEST house with walk up to the front door.
Talk to the Probation Service about this.

Finally welcome to the Human Race.
We are not bad people who will become good, just human beings who do good and bad things at various times of our lives.

This too will pass.

Wishing you all the health, happiness and success I enjoy for myself one day at a time.

You give 25 August as being the deadline for the Governor-General to issue a by-election writ.
I believe the GG can, by an Order in Council, extend the time from the standard 21 days that you nominate to 42 days. This would take the date through to 15 September, only 5 days before the election.

if poor Rolf is going to be crucified for not remembering a visit to Cambridge 40 year ago, is it not entirely reasonable to believe that Banksy did forget that chopper ride, or that he did forget proposing a toast to Dotcom at the rage party? All the bright lights and loud hip-hop and electronic dance music probably affected Banksy’s hippocampus , eh?

It would be a hopeless argument, but John’s lawyer should argue that he be discharged without conviction on the grounds that no attempt has been made to prosecute other similar miscreants. Perhaps that might sting the Police into action and start dusting off a few files.

Looks like a classic case of the coverup being worse than the crime. His ridiculous claims about not remembering a helicopter ride to Dotcom’s mansion and similar memory lapses are what doomed him. His actual crime was no different than what many politicians do, including Cunliffe during his leadership challenge. I’m no fan of Banks or Act, but I don’t think he deserves jail time for this.

I think it would be exceedingly dodgy for the PM (effectively) to decide not to hold an election required by the Electoral Act, and which can only be avoided by a parliamentary supermajority.

The law should probably be written differently, but if for some reason the Government wants to avoid holding a by-election without getting permission from the House, then they should seek an urgent Court order that this is permitted.

I would be fine with a general law change that in the last three months before an election, you never hold a by-election, but that needs a law change, and it shouldn’t be done before the election. The law is abundantly clear.

the concept of DARVO comes to mind Deny, Attack ,reverse victim and offender.

so many of the people on this blog have their heads so far up their rear ends that they are totally in denial of how corrupt NZ has become.

Guess its about greed those who make enough dosh out of the corruption, directly and or indirectly ,like it this way . It ensures that they can pay their rates and their willful blindness to corruption is evident .

So Graeme is convicted he had the decency to say he was guilty I actually think( on my knowledge of it ) he had a case and could have got off if the case had to have been proved.

He has been convicted he has done the time . I would trust Graeme over Banks any time who continues to be in denial and dumps on others .

Poor john Banks must be the victim it always comes back to a deprived child hood classic.

I understand that Penny is not paying her rates because she is seeking accountability.as to where the money is going.. that takes a lot of guts.

I know where the money is going its going to the people who buy politicians through secret trusts.

By the way my complaint to the police about Len Browns trust and the donation from the New Auckland trust is still active .

I’ll ‘whine’ at anyone who I see as a thinly veiled partisan. Not all of us have time to be train-spotters either, but I do despise hypocrisy in anyone from anywhere in the political spectrum – and vote accordingly.
Maybe when you start targeting some of the more egregious breaches by Labour and Winston First I’ll be more inclined to respect your work.

Isn’t asking for a discharge without conviction and admission of guilt assisted by an argument that while there is guilt it may not in particular cases reach the threshold where a conviction is necessary. Discharge without conviction will never overcome that JB was found guilty it will be the way the Court dealt with the decision of whether to convict or not on the basis that guilt was already proven or accepted. It seems that JB, if he indeed does seek a discharge without conviction, won’t be arguing against his own guilt. Yet he seems to run a risk in blaming others, objected to the Judge’s decision and so on and yet still expect to be discharged – I don’t think the Court will wear it.

Geddis and others like Colin Espiner who have written about this are right to be conflicted because they know that what Banks did is no different to what most politicians do. Yes in a strict technical sense he broke the law but it seems to me the it is the law that is most at fault here.
I think it would be better if Banks was discharged without conviction and then the law was looked at very carefully and clarified so that you cannot have people using trusts etc. to get around the intention of the rules.

As for McCready’s open letter above , the arrogant so and so should be told to “go stick it” you know where.

Trusts can not not be used to hide donations – yes that law change made a massive difference to Cunliffe. The left… Subverting the rules they pass for others since the first time socialism failed centuries ago and the ends justifies the means became the only way to justify enforcing their ideology.

Penny – you two are the ones holding yourself out there as bastions of morality, not me. My identity has nothing to do with choices that you and your associates have made in life and why they make your rantings so easy to dismiss.

Wouldn’t it be ironic if John Banks was a bidder when Penny’s house gets put up for sale.
On the Helicopter thing, a lot of people seem to forget that Banks has his Helicopter license and owned his own helicopter. He has has had a lot of flights in helicopters.
Still, that doesn’t excuse what he has done. fwiw, I do think he should be discharged without conviction. It’s a pretty petty offence compared to what others have got away with and he done done considerable good work over the years which should be a mitigating factor when weighing up the effect of a conviction in the eyes of the Judge.

Then Brown should appear at a press conference. And explain that he too hid anonymous donations to his 2010 mayoral campaign and while the method used was technically legal, he has no moral choice available than to also resign.

Then Cunliffe should appear at another press conference. Using either his normal or an optional PI accent, he should point out that he has been completely hypocritical criticising Banks for accepting secret donations when Cunliffe himself has also received secret donations, and the only way to regain his credibility is to resign.

And then every Labour MP who was elected in 2005 or prior to 2005 should appear and confess to having spent taxpayer funds on Labour’s campaign that year, even tho the Auditor General and a bunch of other officials were telling them that they were breaking the law. And they should also apologise for having broken electoral law by overspending. Then they should resign en-mass.

And this day of mass resignation will show that Labour are principled, and not just out to “get” John Banks on a technicality.

Refusing to pay your rates is freeloading and doing so deliberately when you have capacity to pay but still enjoying the benefits is in my view a fraud.

Real reform is needed in campaign finance. Including third party in kind donations and complimentary third party campaigns in spending caps, and banning anonymous donations over $10,000 should be the start.

And John Banks, you should resign. And John Key should ask caucus to endorse thd removal of Nat Whips casting votes on behalf of ACT.

I’m not sure the law IS abundantly clear here. Given the (legal) timelines involved, it looks like you could have a situation where the apparently required by-election to replace someone in this Parliament does not have to be held until after the general election to elect someone for the next Parliament. All consistent with what the Electoral Act appears to require -the Government would not be “breaking the law” by doing so. Which makes no sense … and so there needs to be some way of navigating through the problem. And a solution that says “treat the general election as the by-election as well” does so.

@DPF,

I’d say the chances of the courts ruling on whether the decision to not have a by-election is lawful or not are minimal.

I don’t think there will be any inquiry into police non-prosecutions of political offences, perhaps Andrew Little is relying on that because any inquiry could as easily embarrass Labour as any other party.

“Further to the of the decision of the High Court at Auckland last Thursday, I will resign the seat of Epsom effective from 5pm this Friday the 13th of June 2014” Mr Banks said.

“I will write to the Speaker tomorrow advising him of my resignation said Mr Banks.

“This timeframe allows a number of constituency, administrative and staffing matters in Epsom and Wellington to be dealt with over the next few days.

“I have been privileged to serve the people of Epsom and New Zealand at both a local level and in Wellington.

“I have given my heart and soul over four decades to making a worthwhile contribution to this country. I have always endeavoured to do the right thing. Consequently I am deeply saddened at this turn of events.

“As the matter is still before the Court I will be making no further comment” said Mr Banks.

Easy to see Prebble’s hand in this. Whyte was on Friday acting in a way as though ACT could do nothing about it (the resignation.) I think Prebble whispered in his ear that ACT could do plenty and should or lose out big time.

Adze we are private persons holding politicians accountable, if you have seen corruption and are condoning it then you are an accessory. why dont you go out there and seek accountability for all those other offences which you appear to condone.

at least you agree that there should be an investigation into the lack of action of police etc.

Ultimately the result of The Left’s hatred of Banks & Key.
Why? Both are men, white, straight & had the audacity to work hard & pull themselves out of tough circumstances and become successful.
All those things that used to mean something in Kiwis.
What a fucked up (although small) bunch of envious, spiteful & hypocritical people amongst our society.
Penny & Co..you are nothing but leaching scum, do us all a favour by curling up & dying of ugliness.